Upon the foregoing papers, and for the reasons set forth below, the respondent-tenant’s motion for partial summary judgment is decided as follows.

BACKGROUND & PROCEDURAL HISTORY

This is a nonpayment eviction proceeding in which the petitioner-landlord seeks to collect alleged rent arrears of $13,139.60 from the respondent-tenant. The Petition states that the arrears are comprised of unpaid rent at the monthly rate of $1274.10 for the period of August 2016 through May 2017 plus a balance of $198.60 for the month of July 2016 and a legal fee of $200.00. The Petition further states that the rent “was demanded personally from the tenant(s) since same became due.”

After an initial appearance on May 26, 2017, on the adjourned date of June 13, 2017 respondent appeared by counsel, whose motion for leave to serve and file an amended answer was granted on consent that day. Respondent’s counsel now moves for an order (1) granting partial summary judgment pursuant to CPLR 3212(e) “on partial payments”; and (2) “severing stale rent amounts pursuant to the doctrine of laches.”

On his “partial payments” claim, respondent in his affidavit and his attorney in her affirmation assert that respondent is in the “Family Eviction Prevention Subsidy” (“FEPS”) program, under which the City’s Human Resources Administration/Department of Social Services (“HRA/DSS”) currently sends petitioner two checks totaling $977.10 each month, and previously sent other amounts. Respondent’s motion is supported by copies of HRA/DSS computer printouts showing “shelter” payments made from December 2016 through the beginning of June 2017 and by petitioner’s rent ledger for the period of January 6, 2015 through June 1, 2017. The ledger starts with a zero balance prior to January 2015, and ends with a balance due as of June 1, 2017 (before any payments had been received that month) of $13,008.50. In and for the months listed in the Petition, the ledger reflects receipt of the following payments:

The ledger reflects a similar pattern of payments received in the 18 month pre-petition period of January 2015 through June 2016; that is, from January 2015, when the account starts with a zero balance, through the middle of May 2015 petitioner received semi-monthly payments of $377.45; thereafter, the semi-monthly payments continued in varying amounts starting with $404.95 for the second half of May 2015, then increasing to $409.95 as of June 2015, then increasing to $487 in December 2015, then dropping to $322.60 as of the second half of March 2016, then increasing to $485.10 in June 2016.

Respondent states that his own current share of the rent is $300.101, but does not claim to have paid anything in any of the relevant months, does not assert that petitioner’s ledger fails to credit any payments made and does not explain why he made no payments.

Respondent’s attorney argues that partial summary judgment is warranted on the “partial payments” claim “because there is no dispute of facts that Respondent has made partial payments for the months demanded.” Attorney’s Affirmation at 14 & 23. Respondent’s attorney argues that the HRA/DSS checks “must be considered earmarked for those months for which they are issued, and the landlord is not free to credit such checks to the earliest arrears,” id. at 25, and cites to L & T East 22 Realty Co v. Earle (192 Misc 2d 75, 745 NYS2d 369 [App Term 2nd Dep't 2002])(on a post-judgment order to show cause, reversing lower court’s order granting vacatur of judgment but upholding the vacatur of the warrant where landlord’s acceptance of particular DSS payments was found to have reinstated the tenancy and vitiated the landlord’s right to evict pursuant to the judgment); 8206 Third Ave Realty LLC v. Resto (54 Misc 3d 1202[A], 50 NYS2d 24 [Civ Ct Kings Co 2016]) (nonpayment proceeding dismissed due to defective rent demand where petitioner “misapplied payments to a period other than intended”); and Shimon Realty, Inc v. Stosko (2002 WL 34731014 [Civ Ct Kings Co 2002])(nonpayment proceeding dismissed due to defective rent demand where petitioner gave respondent credit for payment received from DSS but the rent demand did not reflect that these payments had been applied towards the months intended).

On the laches claim, respondent points to petitioner’s ledger which shows that petitioner’s claim for rent arrears dates back to January 2015, rather than only to July 2016 as stated in the Petition. Respondent asks the court to find that the doctrine of laches bars petitioner from seeking a possessory judgment for any rent owed prior to October 2016, which is three months before the commencement of a prior, withdrawn nonpayment proceeding.

Respondent states that he does “not remember the landlord or building manager requesting the rent from me before I received the court papers.” Respondent’s Affidavit at 5. His attorney asserts that “[t]here is no justifiable reason that required petitioner to wait so long to seek the unpaid rent” and that “[t]here can be no dispute that Respondent was prejudiced by Petitioner’s unexplained and inexcusable delay.” Attorney’s Affirmation at 21.2

Petitioner opposes respondent’s motion with its attorney’s affirmation and an affidavit of its agent Dennis Antonopoulos that contains information “obtained from my own personal knowledge as the landlord/or authorized agent.” Affidavit in Opposition at 4. Regarding respondent’s request for partial summary judgment due to “partial payments,” petitioner’s agent notes that respondent “does not deny owing the money”, id. at 7, and petitioner’s attorney argues that what monies were received and how they were applied are questions of fact which cannot be decided on this motion. As for laches, petitioner’s agent counters respondent’s statement that he does not remember any pre-petition request by the landlord for the back rent with his own statement that he “had numerous conversations with the respondent and demanded the rent claimed in the petition”. Affidavit in Opposition at 3. Petitioner’s attorney argues that respondent has not yet met his burden of proof on all of the elements of laches, and, more specifically, his assertion that he does not remember the landlord requesting rent from him falls far short of what is needed to shift the burden of proof to petitioner to show good cause for the delay.

On reply, respondent’s attorney argues that respondent has clearly established the elements of a laches defense, and points out that no written documentation was provided to support petitioner’s agent’s statement that he had numerous conversations with respondent before commencing this proceeding. Respondent’s attorney also argues that respondent would be prejudiced if petitioner is allowed to proceed on its claim for a possessory judgment based on rent that accrued since January 2015. Respondent’s attorney asserts that respondent “earns approximately $1,300 a month,” Reply Affirmation at 16, and that “he would need to seek public assistance to help with the alleged arrears that have accrued and the amount sought by Petitioner may very likely exceed what the Human Resources Administration would approve for an exception to policy one-shot deal since Respondent already receives FEPS assistance.” Id.

DISCUSSION

Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of material and triable issues of fact. Sillman v. Twentieth Century-Fox Film Corp (3 NY2d 395, 404, 144 NE2d 387, 165 NYS2d 498, 505 [1957]). The court should not pass on issues involving credibility, as the function of summary judgment is “issue finding, not issue determination”. Rodriguez v. Parkchester South Condominium, Inc (178 AD2d 231, 577 NYS2d 52, 53 [1st Dep't 1991]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact.3 Winegrad v. New York Univ Med Center (64 NY2d 851, 853, 476 NE2d 642, 487 NYS2d 316, 317 [1985]); Zuckerman v. New York (49 NY2d 557, 404 NE2d 718, 427 NYS2d 595 [1980]. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Alvarez v. Prospect Hospital (68 NY2d 320, 324, 501 NE2d 572, 508 NYS2d 923, 925-926 [1986]); Zuckerman v. New York (49 NY2d at 562, 427 NYS2d at 598).

However, unlike predicate notices, liberal amendment of pleadings is the law in New York State. Under CPLR §3025(b), leave to amend pleadings “shall be freely given”, and while petitioner has not yet made such a request to the court, under CPLR §3025(b), a court may permit pleadings to be amended at trial, “before or after judgment to conform them to the evidence”. Here, where petitioner’s ledger clarifies exactly what rent was charged, what payments were received and what rent remains due in and for each month from January 2015 forward, and where respondent does not claim to have paid anything towards his share of the FEPS-subsidized rent throughout this time period, it appears likely that petitioner will be able to prove a claim for rent arrears at trial after which it can request that the court permit its petition to be amended to conform to the evidence. Accordingly, summary judgment on respondent’s claim of “partial payments” is denied.

As for respondent’s laches defense, this doctrine bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to an opposing party. Saratoga County Chamber of Commerce v. Pataki (100 NY2d 801, 816, 798 NE2d 1047, 766 NYS2d 654 [2003], cert den 540 US 1017, 124 SCt 570, 157 L Ed 2d 430 [2003]; Matter of Barabash (31 NY2d 76, 81, 286 NE2d 268, 334 NYS2d 890 [1972]); Dante v. 310 Associates (121 AD2d 332, 333, 503 NYS2d 786 [1st Dep't 1986]); Skrodelis v. Norbergs (272 AD2d 316, 707 NYS2d 197 [2d Dep't 2000]). To establish laches, a party must show (1) conduct by an offending party giving rise to the situation complained of; (2) delay by the complainant in asserting his or her claim for relief, despite the opportunity to do so; (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief; and (4) injury or prejudice to the offending party in the event the requested relief is accorded to the complainant. With regard to the prejudice prong of the laches test, this may be demonstrated “by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay.’” In re Linker (23 AD3d 186, 189, 803 NYS2d 534 [1st Dep't 2005]), quoting Skrodelis v. Norbergs, supra. All four elements are necessary for the proper invocation of the doctrine. A & E Tiebout Realty v. Johnson (23 Misc 3d 1112[A], 885 NYS2d 710 [Civ Ct Bx Co 2009], aff’d, 26 Misc 3d 131[A], 907 NYS2d 98 [App Term 1st Dep't 2010]). Once these four elements are shown to exist, the burden of proof shifts to the opposing party, who “bears the burden of proving that there was a reasonable excuse for the delay”, and who then “may also offer evidence tending to disprove the four conditions.” Dedvukaj v. Madonado (115 Misc 2d 211, 453 NYS2d 965 [Civ Ct Bx Co 1982]). See also, e.g., Marriott v. Shaw (151 Misc 2d 938, 574 NYS2d 477 [Civ Ct Kings Co 1991]).

Laches is an equitable doctrine based upon fairness, and whether the doctrine applies “depends on the facts of the case.” Continental Cas Co v. Employers Ins Co of Wausau (60 AD3d 128, 137, 871 NYS2d 48, 55 [1st Dep't 2008]), cited in Nunz Realty, LLC v. McBride (40 Misc 3d 1229[A], 975 NYS2d 710 [Civ Ct NY Co 2013])(denying respondent-tenant’s motion for summary judgment on laches defense due to the presence of material issues of fact and noting that “delay alone is insufficient to establish laches” and that “the parties assert different facts as to whether Respondents have been prejudiced by the delay”).

See also, e.g., Dedvukaj v. Madonado, supra (restoring case to calendar for a hearing and trial on respondent-tenant’s laches defense).

Respondent has made no showing on the fourth element of injury or prejudice. The statements in his attorney’s affirmation about what he earns and what he will need to do to secure funds to pay what he may be found to owe are unavailing, in the absence of any allegation that she has personal knowledge of the facts averred. Arriaga v. Michael Laub Co (233 AD2d 244, 649 NYS2d 707 [1st Dep't 1996]); Fleischer v. NTA Pictures, Inc (21 Misc 2d 110, 197 NYS2d 356 [Sup Ct NY Co 1959], aff’d, 10 AD2d 688, 199 NYS2d 423 [1st Dep't 1960]). Compare, e.g., 1515 Macombs, LLC v. Jackson (50 Misc 3d 795, 20 NYS3d 869 [Civ Ct Bx Co 2015])(in a decision granting summary judgment to respondent-tenant on her defense of laches, finding that the prejudice prong “has been satisfied by evidence that the Tenant, who is a senior citizen on a fixed and limited income, lacks any savings or significant resources to pay the large rental arrears now accumulated Even were she to apply for financial assistance from the NYC Human Resources Administration, no approval could be guaranteed”); Bldg Mgmt Co v. Bonifacio (25 Misc 3d 1233[A], 906 NYS2d 770 [Civ Ct NY Co 2009])(in a decision granting summary judgment to respondent-tenant on her defense of laches, noting that “Respondent has sworn in an affidavit that she has neither the current income nor the means to raise funds to offset the substantial arrears” and finding, accordingly, that Respondent had satisfied the prejudice element of laches). Even if respondent’s own sworn affidavit had included the facts of his financial situation and demonstrated injury or prejudice, given that he has raised a defense and counterclaim of breach of the warranty of habitability, including allegations of insufficient heat, mold and vermin infestations, Respondent’s Affidavit at 7, it may turn out after trial (or settlement) that the amount he owes is significantly reduced.

As respondent has not met his initial burden of making a prima facie showing on all four elements of the defense of laches, the burden does not shift to petitioner. Even if the burden were to shift, the contradictory affidavits of respondent and petitioner’s agent create a material issue of fact on the third element of the laches claim — respondent’s lack of knowledge that petitioner would assert its claim for respondent’s unpaid share of the rent dating back to January 2015 — warranting denial of respondent’s motion for partial summary judgment on the defense of laches.

CONCLUSION

Respondent’s motion for partial summary judgment is denied, without prejudice. This proceeding is restored to the court’s calendar for settlement or trial on December 22, 2017.

This constitutes the Decision and Order of this Court, copies of which are being distributed in court to the parties’ attorneys.

Dated: November 6, 2017Bronx, New York

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